Mwesige & Another v Katooke & Another (Miscellaneous Application 9 of 2023) [2024] UGHC 533 (31 January 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORTPORTAL MISCELLANEOUS APPLICATION NO.009 OF 2023 (ARISING FROM CIVIL SUIT NO.28 OF 2018)**


# **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO RULING**

#### **Introduction**

This application is brought by way of a Notice of Motion under Sections 82 and 83 of the Civil Procedure Act, and Order 46 of the Civil Procedure Rules seeking orders that;

- (a)The proceedings, judgement, and orders in Civil Suit No.28 of 2018 by His Worship Muhumuza Asuman, the Magistrate Grade I of the Chief Magistrate's Court of Kyenjojo at Kyenjojo be revised and set aside. - (b)Costs for this application be provided for. - a) The grounds for this application are contained in the affidavit in support of the application deponed by Mwesige Patrick, the first applicant, and are as follows:

- b) That the lower court heard and determined Civil Suit No.28 of 2018 and judgment was delivered in 2022. - c) That the trial Magistrate Grade 1 gave orders which were not to the satisfaction of the applicants herein despite having a good case. - d) That because of the said judgment, the applicants have not realised any reward from the tiresome litigation against the respondents. - e) That if this application is not allowed, it shall cause a miscarriage of justice to the applicants. - f) That it is just, fair, and equitable that the application is allowed for the ends of justice to be met.

In their affidavits in reply, deponed by Muhenda Peter, the Ag. Town Clerk of the 1st respondent and Ssenku Samuel Kimuli, the Deputy Chief Administrative Officer of the 2nd respondent, the respondents opposed this application based on the following grounds;

- a) That the trial court determined civil suit No. 28 of 2018 between the parties justly and fairly. - b) That the trial magistrate had jurisdiction to determine the matter. - c) That there was no material irregularity or injustice exercised by the trial Magistrate. - d) That the applicants had wrongly brought this application seeking a remedy of revision and review. - e) That the application is baseless, premature, and not premised upon any valid case.

### **Background**

The applicants filed Civil Suit No. 28 of 2018 claiming that they had been awarded a contract to collect market dues in Katooke Town Council. However, the agents of the respondents started collecting market dues and the applicants filed the suit for breach of contract. The trial Court considered three issues for determination, namely, (i) whether the suit was properly before the court, (ii) whether there was a valid contract between the parties, and (iii) whether there was a breach of contract.

In his findings, the trial Magistrate Grade 1 noted that the contract required the parties to go for arbitration but since the defendants had chosen not to file a defence, the suit was properly before the court. The trial magistrate also found that a valid contract existed, and the applicants were in breach of the contract by failing to deposit the initial deposit as per the contract. He accordingly dismissed the case with no order as to costs. This application seeks this court to revise and set aside the decision and orders of the trial Magistrate Grade I.

#### **Legal Representation.**

At the hearing, the applicants were represented by Mr. Businge A Victor of M/S Ngaruye Ruhindi, Spencer & Co Advocates while Mr. Isingoma Alex from Attorney General's Chambers, Fort Portal Regional Office, represented the respondents. Both learned Counsel filed written submissions which I have considered in this ruling.

#### **Issues for determination**

In this application, the issues for determination are;

- i. Whether the application raises sufficient grounds for this court to make revision orders. - ii. What remedies are available to the parties?

## **Submissions by Counsel for the Applicants**

Learned counsel for the applicants submitted that the applicants filed civil suit No.28 of 2018 in Kyenjonjo Chief Magistrate's court seeking for a payment of 50% of the contractual price, specific damages of UGX. 4,60,000/=, and general damages of UGX. 19,500,000/=, interest and costs of the suit.

The learned counsel further argued that the trial Magistrate having heard the case, came up with a judgement which was not fair to the applicants when he dismissed the plaintiffs' suit and declined to grant general damages and costs of the suit to them.

Counsel for the applicants further submitted that the error of the trial magistrate was glaring when he held that the applicants had not paid the contractual price, yet they had done so. Counsel prayed that this court make a revision and set aside the orders that arose from Civil Suit No.28 of 2018.

In his submissions in rejoinder counsel for the applicants raised an issue of lack of pecuniary jurisdiction. It was the counsel's submission that the matter before the trial court had a pecuniary value of more than UGX. 20,000,000/= which exceeds the jurisdiction of a Magistrate Grade 1. Counsel submitted that the claim before the trial magistrate involved payment of UGX. 4,650,000/=, general damages of UGX. 19,500,000/= and interest thereon which totalled to UGX. 24,150,000/=.

### **Submissions by counsel for the Respondents**

In his submissions, learned counsel for the respondents raised the ingredients under section 83 of the Civil Procedure Act that calls for revision. Counsel cited the case of *Sentamu Jamilu and 2 others Vs. Sekatawa Haruna Civil Revision No.021 of 2018* where it was observed that section 83 of the Civil Procedure Act applies to jurisdiction alone, the irregular exercise or none exercise of it, or the illegal assumption of it.

Counsel further cited the case of *Amir Khan Vs. Sheo Baksh Singh (1185) 11 CA 16, E. A 237* where it was held that where a court has jurisdiction to determine a question, it cannot be said that it acted illegally or with material irregularity or with material irregularity because it has come to an erroneous decision on the question of fact or even law.

Counsel submitted that the pleadings in Civil Suit No. 28 of 2018 show that the applicants instituted a claim of UGX. 19,500,000/= which is well within the pecuniary jurisdiction of the Magistrate Court as per section 207(1)(b) of the Magistrate's Court Act Cap. 16.

Counsel submitted further that the applicant's affidavits in reply do not anywhere support or cite any known grounds for revision.

**Consideration by court.**

# **Issue 1: Whether the application raises sufficient grounds for this court to make revision orders.**

The law governing revision proceedings is found in section 83 of the Civil Procedure Act which provides thus:

#### **"***83 Revision*

*The high court may call for the record of any case which has been determined under this act by any Magistrates Court, and if that court appears to have -*

- **a.** *exercised the jurisdiction not vested in it in law;* - **b.** *failed to exercise the jurisdiction so vested; or* - **c.** *acted in exercise of its jurisdiction illegally or with material irregularity or injustice, the High Court may revise the case and make such order in it as it thinks fit:"*

The term revision is also defined in **Black's Law Dictionary, 8 th edition, page 1346** as *'a re-examination or careful review for correction or improvement.'*

From the wording of section 83 of the Civil Procedure Act, it is apparent that revision applies to jurisdiction alone, the irregular exercise or non-exercise of it, or illegal assumption of it. The section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. Where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even law, which error would then qualify to rectified on appeal. **(***See:*

## *Matemba versus Yamulinga [1968] EA 643, 645***.)**

The duty of the court in that regard would be to revise the case and make such order as it deems fit. Therefore, the subject of re-examination by the High Court sitting in its revision jurisdiction would be the lower court record for purposes of ascertaining whether or not such court did perpetuate the misnomers spelt out in sub-sections (a), (b) and (c) of section 83 of the Civil Procedure Act. This court revises the record of the lower court to satisfy itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the High Court.

In the instant case, the affidavit in support of the application does not raise any issue of lack of pecuniary jurisdiction by the trial Magistrate Grade 1. It was only in his submissions in rejoinder that counsel for the applicants argued that the claim in Civil Suit No. 28 of 2018 was for UGX. 24,150,000/= (including UGX. 19,500,000/= for general damages) which is over and above the pecuniary jurisdiction of the Magistrate Grade 1 court. Without stating such value in the affidavit in support, the only inference which can be made is that this was an afterthought and submission from the bar on the part of the counsel for the applicants.

The law on general damages is that they are awarded at the discretion of the court and the purpose is to restore the aggrieved person to the position they would have been in had the breach or wrong not occurred. Unlike special damages, which must be specially pleaded and proved, general damages are awarded at the discretion of the court. Therefore, general damages can never be a basis for the determination of the court's pecuniary jurisdiction. A plaintiff who seeks general damages, which when awarded, as pleaded, would exceed the pecuniary jurisdiction of a court, should then file such a matter in a court of competent jurisdiction. This was not the case.

Even if it was the case, an advocate pleading for general damages of UGX. 19,500,000/= with experience could not have let the matter be handled by a Magistrate Grade 1 up to its final disposal and later argue that the trial Magistrate should have transferred the file to the Chief Magistrate.

It is a trite law that parties in civil matters are bound by their pleadings. Order 6 Rule 7 of the Civil Procedure Rules provides thus:

> *"No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."*

In the case of *Jani Properties Ltd. Vs. Dar es Salaam City Council [1966] EA 281* court held that parties in civil matters are bound by what they say in their pleadings which have the potential of forming the record and the court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them. No party can be allowed to depart from its pleadings. It, therefore, follows that applicants herein are bound by their pleadings.

The Magistrates Court Act Cap. 16 provides for the pecuniary jurisdiction of the Magistrate Grade 1. Section 207(1) (b) of the Act provides that a Magistrate Grade I shall have jurisdiction where the value of the subject matter does not exceed twenty million shillings determination of causes and matters of a civil nature.

Apart from the general damages, the implications of which, as far as the determination of pecuniary jurisdiction is concerned, I have highlighted in this ruling, there is nothing in either the applicants' pleadings or their counsel's submissions indicating that a Magistrate Grade 1 court lacked jurisdiction to adjudicate Civil Suit No. 28 of 2018. Consequently, this court concludes that the trial Magistrate had the pecuniary jurisdiction to hear and decide the matter.

Having found that Magistrate Grade 1 had the pecuniary jurisdiction to hear and determine Civil Suit No. 28 of 2018, I am inclined to inquire as to whether the trial Magistrate exercised his jurisdiction illegally or with material irregularity or injustice in hearing and determining the matter.

Upon careful examination of the affidavit deponed by the first applicant, the grounds presented in support of this application are found to be lacking in substantial merit. The sole contentions are that the orders issued by the Magistrate Grade 1 were unsatisfactory to the applicants, despite their belief in the strength of their case, and that, as a result of the judgment, they have not realized any gains from the protracted litigation against the respondents. However, these grounds are not the ones envisaged under section 83 of the Civil Procedure Act and other authorities on revision. They fail to establish a compelling basis for the present application, to say the least. They do little to assist this court in ascertaining whether the trial court exercised its jurisdiction illegally, with material irregularity, or injustice.

It is imperative to underscore that the court's role extends beyond simply granting all prayers sought by the parties. The court, guided by legal principles and the factual matrix of the case, must exercise its discretion judiciously to render a verdict. In the present matter, the trial Magistrate Grade 1 discharged this duty diligently.

In the premises, I would agree with Counsel for the respondents that indeed the pleadings in this application raise no single ground for revision. The only remedy that the applicants would have pursued would have been an appeal against the decision and orders of the trial Magistrate Grade 1.

In conclusion, this application lacks merit and is hereby dismissed with the costs awarded to the respondents.

It is so ordered.

Dated at Fort Portal this 31st day of January 2024.

**Vincent Emmy Mugabo Judge**